United States of America v. Henry Pangilinan Fresnoza

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HENRY PANGILINAN FRESNOZA,
Defendant - Appellant.
No. 12-10533
D.C. No. 1:10-cr-00028-FMTG-3
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted February 18, 2014**
Honolulu, Hawai‘i
Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.
Henry Pangilinan Fresnoza (“Fresnoza”) appeals from a judgment of
conviction following a jury trial on the basis that it was obtained in violation of the
Speedy Trial Act, 18 U.S.C. § 3161. A jury in the District of Guam found
FILED
FEB 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Fresnoza guilty of conspiracy to distribute methamphetamine hydrochloride, in
violation of 21 U.S.C. §§ 841(a)(1), 846, and 960; conspiracy to import and
importation of methamphetamine hydrochloride, in violation of 18 U.S.C. § 2 and
21 U.S.C. §§ 846, 952, and 960; and four counts of money laundering, in violation
of 18 U.S.C. §§ 2 and 1956(a)(2)(B)(i).
Approximately one and a half years elapsed between the filing of the initial
indictment and Fresnoza’s conviction. The Speedy Trial Act provides that trial in a
criminal case “shall commence within seventy days” of the filing of an indictment.
18 U.S.C. § 3161(c)(1). However, exclusions to the seventy-day speedy trial clock
apply. For example, and relevant to this appeal, time is automatically excluded
from the speedy trial clock during the pendency of a pre-trial motion. 18 U.S.C.
§ 3161(h)(1)(D).
Fresnoza principally objects to the continuances the district court granted
under the “ends of justice” exclusion to the Speedy Trial Act, which provides for
the exclusion of “[a]ny period of delay resulting from a continuance granted by any
judge . . . if the judge granted such continuance on the basis of [the judge’s]
findings that the ends of justice served by taking such action outweigh the best
interest of the public and the defendant in a speedy trial.” 18 U.S.C.
§ 3161(h)(7)(A). To exclude time under this provision, the court must provide
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“either orally or in writing, its reasons for finding that the ends of justice served by
the granting of such continuance outweigh the best interests of the public and the
defendant in a speedy trial.” Id. The ends of justice provision enumerates several
factors the court must consider in deciding whether to grant an exclusion, including
“[w]hether the failure to grant such a continuance in the proceeding would be
likely to make a continuation of such proceeding impossible, or result in a
miscarriage of justice.” 18 U.S.C. § 3161(h)(7)(B)(i).
We review the district court’s factual findings for clear error and the
application of the Speedy Trial Act de novo. See United States v. Wirsing, 867
F.2d 1227, 1229 (9th Cir. 1989). Although contemporaneously explaining the
reasons for an ends of justice exclusion is the best practice, “[w]e have held that
simultaneous ‘ends of justice’ findings are unnecessary so long as the trial court
later shows that the delay was motivated by proper considerations.” United States
v. Ramirez-Cortez, 213 F.3d 1149, 1154 (9th Cir. 2000) (alterations and internal
quotation marks omitted). In ruling on Fresnoza’s motion to dismiss, the court
showed that each “ends of justice” exclusion was motivated by proper
considerations and that the court granted these exclusions after considering the
factors delineated in § 3161(h)(7)(B). The court did not clearly err in providing the
factual basis for granting the exclusions. On de novo review, we conclude that
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fewer than 70 days ran on the speedy trial clock before Fresnoza was brought to
trial. Accordingly, the Speedy Trial Act was not violated.
Fresnoza also appeals from his sentence arguing that he should not have
received a separate sentence for the money laundering charges. However, he offers
no support whatsoever for this proposition. There is no argument that the sentence
was outside of the range suggested by the Sentencing Guidelines. The sentence
was reasonable. Therefore, there was no sentencing error. See United States v.
Cantrell, 433 F.3d 1269, 1280 (9th Cir. 2006).
AFFIRMED.
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